W.C. No. 4-348-700Industrial Claim Appeals Office.
September 19, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ Mattoon) dated April 2, 2001. We dismiss the respondents’ petition to review the order on the issue of medical benefits for lack of a final order and affirm the award of temporary disability benefits.
A brief procedural history is necessary to understand our resolution of the issues on review. The claimant filed a claim for workers’ compensation benefits which alleged a low back injury on May 6, 1997, when she hit the middle of her back on a bar. The blow broke the skin and left a mark. At the time the claimant did not think she was seriously injured and did not request medical attention. However, she testified that 8 days later she began to experience pain in her lower back extending to her legs. The claimant later sought treatment from Dr. McNally.
The respondents denied liability for the claimant’s low back pain and a hearing was scheduled for December 29, 1997. In an order dated January 21, 1998, former ALJ Wells found the claimant suffered an injury on May 6, 1997. However, ALJ Wells did not determine and expressly reserved the issues of whether the claimant was entitled to temporary disability and medical benefits pending clarification of Dr. McNally’s opinions concerning the causal relationship between the need for low back treatment and the industrial injury.
Dr. McNally’s deposition was taken on January 15, 1999. Dr. McNally opined that the claimant’s disabling low back pain was the proximate result of the industrial injury. (McNally depo. pp. 8, 10). In support, Dr. McNally stated that the “jarring” industrial injury to the mid back and the claimant’s subsequent heavy lifting at work was probably sufficient to cause the extruded lumbar disc fragment which was later found. He added that it is not unusual the claimant did not develop symptoms for several days after the industrial incident because “there often is a period to time that the nerve irritation gradually builds up” after a traumatic injury causing an extruded fragment. (McNally depo. pp. 9, 20).
The matter was subsequently reassigned to ALJ Mattoon. On June 5, 2000, ALJ Mattoon found the claimant sustained her burden to prove a causal connection between the industrial injury and her disabling low back pain. Consequently ALJ Mattoon awarded temporary disability benefits commencing July 14, 1997. However, ALJ Mattoon did not determine the claimant’s disability rate.
ALJ Mattoon also found that the employer referred the claimant to Dr. Rodriguez on July 28, 1997. However, ALJ Mattoon found the referral was “unsuccessful” because Dr. Rodriguez refused to provide treatment. The ALJ found these circumstances were “tantamount to no referral at all” and, therefore, determined that the right to select the treating physician passed to the claimant, who selected Dr. McNally. Consequently, the ALJ held the respondents liable for all reasonable and necessary treatment provided by Dr. McNally after July 28, 1997.
The parties subsequently stipulated to the claimant’s average weekly wage. Consequently, on April 2, 2001, ALJ Mattoon ordered the respondents to pay temporary disability benefits at the rate of $173.33 per week. The respondents timely appealed the April order.
I.
On review, the respondents contend the industrial injury involved a blow to the thoracic spine not the lumbar spine. They also contend the injury was minor as evidenced by the fact the claimant initially refused medical treatment, the claimant didn’t report the injury until July 28 and the claimant didn’t miss any time from work until more than two months after the injury. Therefore, they argue the evidence is insufficient to support the ALJ’s finding of a causal connection between the industrial injury and the claimant’s disabling low back pain. We disagree.
To establish an entitlement to temporary disability benefits, the claimant must prove the industrial injury caused a disability, that she left work as a result of the disability, and that the disability continued for more than three regular work days. Section 8-42-103(1)(b), C.R.S. 2001. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In this context, the term “disability” refers to the claimant’s inability to perform her regular employment. McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995).
The question of whether the claimant has sustained her burden of proof is a factual determination for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the question is factual in nature we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, and the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the evidence is subject to conflicting inferences. Within her sole prerogative, ALJ Mattoon resolved the conflict in favor of the claimant by crediting the testimony of Dr. McNally. See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ’s credibility determinations informs reviewing court how ALJ resolved conflicts in the evidence).
During his deposition, Dr. McNally was made aware that the industrial injury involved a blow to the thoracic spine not the lumbar spine, and that the claimant had a prior history of low back pain and chiropractic treatment. Nevertheless, Dr. McNally attributed the claimant’s disability to the industrial injury. (McNally depo pp. 8-9, 20). In particular, Dr. McNally opined that the situation the claimant presented when she obtained chiropractic treatment was “completely different” than the circumstances she presented after the industrial injury. (McNally depo. p. 19).
Dr. McNally’s opinions are consistent with the claimant’s testimony concerning her pre-existing condition and history of chiropractic treatment. (Tr. pp. 52-54, 77). Therefore, we cannot say ALJ Mattoon erroneously relied on Dr. McNally’s testimony. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000), cert. denied August 21, 2000 (credibility determinations binding “except in extreme circumstances, where the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
Moreover, there is substantial evidence in Dr. McNally’s testimony to support ALJ Mattoon’s finding that the industrial injury was the proximate cause of the claimant’s temporary disability. Consequently, ALJ Mattoon did not err in awarding temporary disability benefits and it is immaterial the record contains some evidence which, if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
II.
The respondents also contend ALJ Mattoon erred in finding that Dr. McNally and his referrals are authorized treating physicians. We conclude this portion of the order is interlocutory and not currently subject to review. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986) (order may be partially final and partially not final).
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2001; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). “Authorization” refers to the physician’s legal authority to treat, and is distinct from whether treatment is “reasonable and necessary.” Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026
(Colo.App. 1993). Thus, a finding that treatment is “authorized” is not itself a “medical benefit.” One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied “with order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” Orders which do not either award or deny benefits or penalties are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
In light of these principles, we have previously held that orders which determine the identity of the authorized provider and contain a general award of medical benefits are not final and reviewable unless the reasonableness of specific medical treatment is resolved. Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828 (August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). We adhere to our prior conclusions.
In this case, ALJ Wells expressly reserved the issue of whether Dr. McNally’s treatment of the claimant’s low back problems was reasonably necessary to cure and relieve the effects of the industrial injury. ALJ Mattoon ordered the respondents to pay for all reasonable and necessary treatment provided by Dr. McNally after July 28. However, ALJ Mattoon did not determine as a matter of fact what, if any, part of the treatment was reasonable and necessary. Consequently, ALJ Mattoon’s order on the issue of medical benefits is not a final order within the meaning of §8-43-201(2) and is not currently subject to review.
However, because the issue may arise again and for purposes of judicial economy, we agree with the respondents’ contention that ALJ Mattoon misapplied the law in finding that Dr. McNally became an authorized treating physician on July 28. Under § 8-43-404(5), C.R.S. 2001, the respondents are afforded the right, in the first instance, to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996).
It is now well established that the respondents must designate a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). Where the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center,
W.C. No. 4-253-689 (November 4, 1996). However, the respondents’ duty to select a replacement physician does not arise until the respondents have knowledge that the designated physician refused to provide treatment for non-medical reasons. Tellez v. Wal-Mart Stores Inc., W.C. No. 4-413-780
(July 20, 2000); Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999). Thus, a finding that the designated physician has refused to treat the injury for non-medical reasons is, in and of itself, insufficient to support a determination that the right of selection passed to the claimant.
Here, ALJ Mattoon explicitly found that as soon as the employer became aware of the industrial injury, the employer referred the claimant to Dr. Rodriguez for treatment. (Finding of Fact 9). However, ALJ Mattoon made no findings of fact concerning when, if ever, the respondents became aware of Dr. Rodriguez’s refusal to treat the injury. Neither did ALJ Mattoon determine whether the respondents gave the claimant implied permission to treat with Dr. McNally by failing to designate a substitute physician. See Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Under these circumstances, ALJ Mattoon’s findings of fact are legally insufficient to support her determination that Dr. McNally became authorized on July 28, 1997.
In reaching our conclusions, we disagree with ALJ Mattoon’s finding that an “unsuccessful” referral is “tantamount to no referral at all.” (Discussion and Conclusions of Law 4). Rather, the issue is whether the right of selection passed to the claimant by virtue of the respondents’ failure timely to designate a substitute provider.
IT IS THEREFORE ORDERED that ALJ Mattoon’s order dated April 2, 2001, is affirmed insofar as the order awarded temporary disability benefits.
IT IS FURTHER ORDERED that the respondents’ petition to review ALJ Mattoon’s order on the issue of medical benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 19, 2001 to the following parties:
Lori Duchene, 6734 Ashland Pl., Widefield, CO 80911
Janice Ewing, Interim Personnel Service, 4500 Cherry Creek Drive South, #1050, Denver, CO 80246
Insurance Company of the State of Pennsylvania, Nhu Miller, Specialty Risk Services, P. O. Box 221700, Denver, CO 80222
John V. FitzSimons, Esq., 105 E. Moreno Ave., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy